Editorial of December 2015

‘ Paris and Europe, between a rock and hard place’

▪

The French Government informed the Council of Europe that, from now on, it would assume the risk of disrespecting the European Convention of Human Rights (ECHR) regarding the required measures to fight terrorism.

Point made: France, in a “state of emergency” (declared in November 14 by the French Government) admits the derogation of some of the rights enshrined in the ECHR. Article 15 ECHR allows the legitimate possibility for the Contracting States to derogate from the rights provisioned in the Convention “in time of war or other public emergency threatening the life of the nation any High Contracting Party (…) to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”. Note, however, that, according to paragraph 2 of Article 15, in any case, derogations of Article 2 (right to life), Article 3 (prohibition of torture), Article 4/1 (no one shall be held in slavery or servitude) and Article 7 (principle of legality) will be admitted.

Within this context, it is important and only natural to question the decision of the French Government in the light of the underlining obligations of the European integration. Article 4/2 TEU states that “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security”. This provision must be, however, articulated with Article 7/1 TEU: there is always the possibility, in the institutional and functional framework of the EU, that the Council, acting by the 4/5 majority of its members, verifies the existence of “clear” risk of violation of the values mentioned in article 2 (TEU) among which it is stated the backbone of the European construction “respect for human rights, including the rights of persons belonging to minorities”.

Well, there is, therefore, (formal) legal legitimacy in order to adopt the derogatory measures of some of the rights protected by the ECHR. And, beyond that (always insurmountable) legal legitimacy, there is a general recognition – in particular in the international community – that France has all the legitimacy to react and engage a war of State, both internally and externally, against groups of organized killers, as the ones who perpetrated the terrorist attack in Paris, on November 13, and the self-proclaimed “Islamic State”. Moreover, for the first time after the II World War, there is in regard to those groups a consensus “post November 13” among the permanent members of the UN Security Council. For the first time, in many years, there is a joint action and clear legitimacy, in the light of international law, regarding an armed intervention and the need of a unison action. Between September 11 of 2001 and November 13 of 2015, the will to deal with terrorism together without condition or reserve (considering the terms in which it operates and refines its barbaric nature nowadays) matured, and was less an acknowledgment of a necessity.

It has been understood – I believe – that the erroneous nature of the (pseudo) justifications that so often were given, based on circumstantial interests and political affections, always ended (even if that was not the intention) benefiting the terrorist agenda: the condemnations followed by “but”, the justifications intellectually inconsequent based on a socio-tributary analysis of the “class struggle”, the justifications based on economic reasons, on the flawed integration of immigration, of the “problem of the West”.

In the French case, I was always perplex with this type of condescending narrative based on the environment of the Parisian “Hlm” (social housing with moderated costs), when the Portuguese (as well as the Spanish) emigrants, in the decades of the 60s and 70s, integrated themselves from the “bidonville”. Like someone once said, we have to face the problem as organized and global banditry. Period. Even the qualification/denomination of what happen as terrorism opens the door to a glimmer of a justification to a vaguely understandable (although not admissible) cause. Therefore, there is no room for any possible justification or excuse to what Paris lived and experienced on November 13.

Resuming, however, to observations of a more obvious legal nature, it is important to highlight the risk that we face: we are between a rock and a hard place in terms of the fundamental balance between the adoption of the necessary and efficient measures to fight terrorism, at a global scale, and the preservation of the rule of Law which, in the end, justifies that same fight.

The media exposed some examples of the measures undertaken by the Parisian authorities, making clear in what that risk might translate into. For instance, a local authority from the North of France justified the adoption of a measure that bans the sale of alcoholic beverages in glass bottles, between 8 pm and 8am, with the state of emergency and the terrorist attacks.

A recurring question: the possible suspension of “Schengen”. At the bottom of this issue, the possible setback in terms of the free movement of persons and, necessarily, in one of the mains traits of the road towards the concretization of the European citizenship…

It is important to face this question (which already generated hasty reactions). The reinforcement of the cooperation and efficiency of the action of the European intelligence is of the utmost importance. But this does not imply, necessarily, a setback – at least in terms of principles – on the free movement of persons, of citizens among Member States. When the main operational bases of terrorism (banditry) are placed in European territory and are perpetrated by citizens from Member States it is important to avoid hasty reactions always … and especially when we are between a rock and a hard place.

2015 The Official Blog of UNIO-EU Law Journal. All content is propriety of The Official Blog of UNIO-EU Law Journal, unless otherwise noted.
Please do not reproduce or use any texts, photos or other content without permission.